In The Supreme Court of Nigeria

On Friday, the 3^rd day of March 1972

SC 27/1970

Before Their Lordships  

Between

And

Judgement of the Court

Delivered by

George Baptist Ayodola Coker.J.S.C.

This appeal raises a point of paramount importance in that it poses in a neat form the considerations which are enjoined upon a court in granting an order of interlocutory injunction with regard to land. The appellant herein was the defendant in the High Court, Lagos and the plaintiffs therein (now respondents) had sued him for a declaration of title to land being and situate at and known as Nos. 150-152, JemiAlade layout, Idi-Araba, possession of the said land, damages for trespass to the land and an injunction against further acts of trespass. Before the order for pleadings was applied for or made, the plaintiffs filed a motion asking for ~an interim injunction restraining the defendant his servants and/or agents from further trespassing on plot Nos. 150 and 152, JemiAlade layout, Idi-Araba, Ikeja District, Lagos State, property of the plaintiffs pending the final determination of this suit." Before the motion was argued, an order for pleadings was made and the plaintiffs accordingly filed their statement of claim. That statement of claim avers that the land in dispute formed a portion of lands traditionally belonging to the Alashe Chieftaincy family who had sold to one JemiAlade, since deceased, and whose title to the land had been vindicated against one Aborishade by judgments of the Federal Supreme Court. The statement of claim further states that the plaintiffs had purchased the land from the legal personal representatives of the said JemiAlade and had obtained a conveyance of same dated the 22nd July, 1968; that since then they had been in possession of the land until the defendant '~with the assistance of some servants, agents and/or workmen" came on the land and forcibly ejected them therefrom. In particular the plaintiffs' statement of claim avers that:-

8.    The land part of which is the land in dispute was the subject matter of the court action in suit No.1/46/54 BahatundeJemiAlade v. Aborishade in which judgment was delivered on 17th March, 1962, at the High Court, Ikeja.

9.    The aforementioned judgment confirmed the title of the said BabatundeJemiAlade to the said land including the land in dispute.

There was filed along with the motion of the plaintiffs an affidavit. The affidavit deposes to more or less the same facts as are set out in the statement of claim. As stated before, at the time when the motion was heard the defendant had not yet filed his statement of defence. Three counter-affidavits were however filed by or on his behalf-two were filed by the defendant himself and the other by his vendor, Aihaji Elias. The affidavits of the defendant depose to the fact that he had bought the land from Alhaji Elias by virtue of a conveyance dated the 6th March, 1959; that he had always been in possession of this and since then; that he never trespassed on any lands belonging to the plaintiffs but that on the 15th January, 1969, he ejected some trespassers from land in his possession and was in no way answerable for the complaints of the plaintiffs. The counter-affidavit filed by Aihaji Elias, as might be expected, confirms the sale of the land to the defendant by himself and deposes that he, i.e. the defendant~s vendor, had derived his title from "Mr Samuel B. LawansonAborishade who derived his title from GbadamosiAborishade by virtue of a deed of conveyance dated the 22nd December, 1954 and registered as No.79 at p.79 of Volume 4 in the Land Registry in Lagos."

At the hearing of the motion the parties canvassed the above facts and learned counsel for the defendant opposed the granting of the order of interlocutory injunction. The learned trial judge in a reserved judgment review the facts before him and directed himself thus:

The principle on which the court will act in an application for an order of interlocutory injunction is well settled and it is that the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the plaintiff is entitled to relief.

The learned trial judge then adverted to the submissions of learned counsel for the defendant that the application must fail inasmuch as the plaintiffs had not exhibited to their affidavit a copy of the deed of conveyance in virtue of which they are claiming. In this respect the learned trial judge had this to say:

The applicants, he stated, must show their title to the court. As this is an interlocutory application in which evidence was not led, I do not consider it necessary for the applicants to exhibit all their title deeds and other documents that they will require to prove their case, it is sufficient to refer to these deeds in the affidavit. The existence of this title deed had not been challenged by the respondent. It is only when evidence is being led during the hearing of the substantive action that the failure of the applicants to tender these deeds may be fatal to their claim.

The learned trial judge then considered the balance of convenience and eventually made the order of interlocutory injunction against the defendant.

The present appeal is against that order and learned counsel for the defendant before us conceded that the learned trial judge properly directed himself on the law but contended that the learned trial judge mis-directed himself in the application of the law to the facts of the case. Learned counsel submitted that in order to succeed on such an application, the applicant must show a strong prima facie case and that in the particular case in hand as the plaintiffs were relying on a title by deed it was impossible for them to show such a prima facie case without exhibiting a copy of their deed of conveyance on which their title is predicated. On the other hand, learned counsel for the plaintiffs maintained that the judge was right in not insisting on the production at that stage of the proceedings of the actual deed of conveyance but had based his acceptance of the plaintiffs' complaint on the allegation of the existence of such a deed.

The law with respect to interim injunction constitues one of the most difficult sections of our law and the difficulty exists not because the law is recondite but because the ascertained principles of law must be subjected at all times to a rather amorphous combination of facts which are perpetually different in every case. Undoubtedly, a good deal of judicial discretion is called for and we would think that no-one now imagines that such an order could or would be granted as a matter of course. (See the observations of this Court in Chief Yesufu A. Oniru and Another V. WahahiGhadamosi, S.C. 328/69 decided on the 23rd December, 1971). Evidently an application for an interim injunction postulates that the applicant has a right, the violation of which he seeks to prevent and in order to do so effectively to ensure at that stage of the proceedings that the subject-matter of the right be maintained in status quo. A person resisting the application for an interim injunction could either deny the right itself or only deny the breach of it or indeed deny both the right and the breach of it. Where only the violation of the plaintiffs' right is denied, the court considers the balance of convenience and if it decides that greater harm would result to the applicant by a refusal of an order of interim injunction, the court will make the order. Where the right itself is denied, it seems that a denial of the violation is also implicit in this and the plaintiff must make out at that stage a strong prima facie case on the application in order to justify interference by way of interim injunction; and he must show that an injunction until the hearing is necessary to protect him against irreparable injury, that is injury which an order of court in the terms of his writ could not cure. In this respect, however, we point out that the jurisdiction to grant interim injunction is equitable and for this purpose the court must consider the conduct of the parties both before and at the time of the application and the decision whether to grant (or not) the order sought must be related to actual and ascertained facts of the current situation.

We do not subscribe to the view that it is impossible in all cases where title is founded on a deed of conveyance to show a prima facie case without exhibiting the title deed since we are of the view that the cases must turn upon their own facts. What is required to be made out is a prima facie case and not a prima facie title to the land and depending on the circumstances of each case and in particular the circumstances necessitating or compelling the application for an interim injunction, the court must bring to bear on the whole matter its own discretion in maintaining an equilibrium as between two warring parties. It must however be borne in mind that at ~l times the burden of establishing such a case, as indeed that of a balance of convenience, rests always on an applicant for the order. In Donmar Productions Ltd. V. Bart and Ors. [l967] I W.L.R. 740 at p. 742, Ungoed-Thomas J. observed with respect to this point as follows:-

So in an application for an interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and, subject to this being established, the governing consideration is the maintenance of the status quo pending the trial.

It is well established that in deciding whether the matter shall be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damages to the plaintiffs can be cured by payment of damages rather than by the granting of an injunction. Of course the burden of proof lies on the applicant throughout.

We think this is a correct proposition of the law and we propose to apply it in the case in hand. (See also observations of this Court in John Holt (Nigeria) Ltd. and Anor. V. Holts' African Workers' Union of Nigeria and Cameroons [1 963] 1 All N.L.R. 379). In the particular case in hand there was affidavit evidence before the learned trial judge of the identity of the land claimed by both parties; there was affidavit evidence that the plaintiffs had purchased the land from the legal personal representatives of JemiAlade whose title had been unsuccessfully contested by the defendant's vendor and there was affidavit evidence that the plaintiffs were ejected forcibly from the land by the defendant on or about the 15th January, 1969; the defendant also deposed to a counter-affidavit that he was in the process of erecting a building on the land a circumstance which must have a crucial effect upon a consideration of whether the plaintiff will suffer irreparable injury if the status quo was not maintained. In the face of all this evidence we think the judge was entitled to take the course which he took of acceding to the request of the plaintiffs. The principle seems to us to be clear and in short an interim injunction would be granted to a party who shows that he has a prima facie case on a claim of right or in other words that, prima facie, the case he has made out is one which the opposing party would be called upon to answer and that it is just and convenient to the court to intervene and that unless the court so intervenes at that stage the other party's action or conduct would irreparably alter the status quo or render ineffective any subsequent decree of the court.

We are clearly of the view that in this case the plaintiffs have made out a case for an interim injunction and that on the whole the learned trial judge came to the right conclusion when he decided that this was a case in which he ought to make an order of interim injunction. In Repuhhc of Peru V. Dreyfus Bros. and Co. (1888) 38 Ch. D. 348 at p.362, Kay J. adverting to the principles on which the court grants interim injunctions, observed as follows:-

The duty of the court upon a motion like this is to consider, upon the evidence before it, whether the plaintiffs show a probable case for relief at the hearing. If they do not, the court should be very reluctant to interfere with the rights of the defendants by interlocutory injunction . . .

Another most important consideration is the relative convenience or inconvenience to the parties of granting or withholding an injunction. Where the plaintiffs do make out a probable case for ultimate relief, or where the evidence leaves this so much in doubt that the court must see there is a serious question of difficulty to try, then this matter of convenience becomes of paramount importance.

We think that if these principles were rightly applied to the facts of this case~ the only conclusion would be that the application herein was properly made and granted. The appeal fails and it is dismissed. We order that the appellant must pay the costs of the appeal fixed at 33 guineas.

Counsel